Wednesday, 19th July 2023Period of Redundancy Protection for New and Expectant Mothers Set to Double
On the 24th of July 2023, the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 (the “Act”) will come into force. Under this new Act, pregnant employees and employees recently returning from parental leave will have priority in terms of being offered suitable alternative vacancies should their employer be carrying out a redundancy process.
What is the current position?
At present, employers are required to offer employees on maternity leave, shared parental leave or adoption leave, redeployment opportunities, should such a role be available, over other employees whose positions have also been confirmed as redundant when the employer is looking for suitable vacancies for these employees as part of the redundancy process.
What will change with the new Act?
The Act extends this priority status to employees who:
- are in a “protected period of pregnancy”;
- have recently suffered a miscarriage; and
- have recently returned from maternity leave, shared parental leave and adoption leave.
However, the Act itself contains little detail and further regulations are awaited to clarify how the extension of these rights will work. These regulations are not expected to come into force until April 2024.
The Act does not specify what amounts to recently returned from maternity leave or adoption leave, though, based on the consultation period and government press release in respect of the Act, employees are expected to benefit from an additional 6-month period after returning from maternity or adoption leave.
For employees returning from shared parental leave, employers will need to wait for the regulations before it is clear for how long they will be entitled to this new redundancy protection. The consensus from the consultation was that 6 months would be disproportionate if the employee had taken only a week of shared parental leave, but there must be some protection that is proportionate.
It is also not yet certain how the “protected period of pregnancy” will be determined, though, it is likely to be from when the employee informs their employer that they are pregnant until 6 months after they return from maternity leave (pending confirmation in the regulations of the 6-month period). The Act does make clear however, that the protected period may commence after the end of the pregnancy, to ensure that employees who have suffered a miscarriage and then inform their employer, are covered by the protections, where their employer was not aware they had been pregnant until after the miscarriage. Currently, the law only recognises miscarriages that take place after 24 weeks (when the maternity leave entitlement is granted).
The new law does not offer the redundancy protection to employees on paternity leave.
It is likely that the regulations will also contain details of the implications for failure of an employer to be compliant with the Act. It is expected that the employee will have a claim for automatic unfair dismissal, which is the case for employees on maternity leave, shared parental leave and adoption leave at present.
Impact on employers
Employers are not required to take any action in response to the Act just yet, as we wait for the regulations to be published next year. However, they should be aware of the expanded coverage of the redundancy protections which will now last from when an expecting mother tells their employer that they are pregnant to 6 months after they return from maternity leave and the potential implications this may have on their business.
Employers undertaking a redundancy exercise will, under the Act, be required to give priority to a wider group of employees for suitable alternative vacancies and will need to be aware of which individuals will now be captured by the protections. It also poses an issue that, if a redundancy is pending, employees may feel pressured to inform their employer that they are pregnant earlier in order to be covered, perhaps even before their 12-week scan. Employers should also identify available and suitable vacancies for those with priority.
The merits of protecting new and expectant parents from competing for redeployment opportunities at this vulnerable time are clear, though this may disadvantage high-performing employees without priority status, which could present management difficulties, that employers should be prepared for.
If you require further information about anything covered in this briefing, please contact Michael McDonnell, Will Gubbins, Elena Kadelburger or Paddy Cox or your usual contact at the firm on +44 (0)20 7526 6000.
This article is for general purpose and guidance only and does not constitute legal advice. It should not replace legal advice tailored to your specific circumstances.
